- Arising out of employment (added peril)
- Causation (medical evidence)
- Dislocation (shoulder)
- Seizures
- Strains and sprains (lumbar)
- Organic brain injury (mild traumatic)
On February 10, 2016, the worker (a scaffolder) fell from a scaffold. The issues under appeal were: a) initial entitlement for the incident that arose out of and in the course of employment; and, b) entitlement for a left shoulder and low back injury claimed to have been sustained at work on February 10, 2016.
The appeal was allowed. The Panel determined that for an added peril to be present, it must be shown that the worker's injuries that occurred during the fall or as a result of the fall occurred as a result of risks in the workplace that are beyond what would normally be expected in everyday life. The Panel noted that an added peril is not something additional that is brought into the workplace as described in the common law, but addresses whether the inherent risk of the workplace or the specific environment of the workplace, which exceeds that which would be encountered in everyday life, resulted in or significantly enhanced the injures sustained as a result of the fall. The worker was in the course of his employment at the time of the loss of consciousness (LOC). In the case of a disablement, the section 13(2) presumption does not apply and it must be shown the accident arose both in the course of employment and arose out of the employment. The Panel found, on a balance of probabilities, that the cause of the worker's LOC was due to alcohol withdrawal, as confirmed by his treating practitioners. The worker was a heavy drinker and had discontinued drinking two days before his fall from the scaffold. As the worker's LOC and seizure did not arise out of employment, the Panel then considered whether the injuries resulting from the fall were caused or enhanced by an instrument of added peril, as defined above. The Panel concluded that the worker struck a steel protrusion (gusset) during his fall, resulting in a personal injury. The Panel was satisfied that by striking these protrusions, which would not normally be encountered outside of the workplace in question, the worker sustained a personal injury. The steel protrusions from the ship's hull were instruments of added peril. The Panel found that the required components under OPM Document No. 11-01-01 were met specific to the diagnosis of a closed head injury. For the worker's shoulder dislocation and low back strain, there were multiple theories put forth. Decision No. 17/88 discusses multiple theories of causation: "The evidence that the accident did not arise from employment must be sufficiently convincing for us to conclude it is probable the accident did not arise out of employment." The Panel agreed with this analysis and stated that it is not confined to the determination of whether the theory is not work-related, but applies equally to whether the theory is work-related in nature. The Panel would have to be satisfied that the theory of work-relatedness was the most probable of the theories presented. Based on a balance of probabilities, the Panel found that it was more reasonable to attribute the worker's shoulder dislocation and low back strain to being struck by the steel protrusion while falling, rather than other causes.